Pocket the Difference

Florida's Sunshine Law encourages citizens to participate in government. Among other things the statute forbids elected officials from privately discussing issues and mandates that governments publicize the topics of future meetings. Such openness is expensive. The City of Miami spent $391,271 of taxpayers' money last year to advertise in local newspapers.

The law doesn't require governments to publicize every detail of every meeting. Indeed the Magic City's charter, originally approved in 1921, allows elected officials to -- in limited circumstances -- vote on legislation without advance public scrutiny. By proposing a so-called pocket item, a commissioner can call for a vote on an issue regardless of whether citizens have been forewarned. This exception was intended to allow leaders to address last-minute problems.

The charter generally limits each commissioner and the mayor to one pocket item per meeting. City Manager Donald Warshaw (who was fired last week by Mayor Joe Carollo) is allowed two. By protesting, any commissioner can block discussion for several days or weeks.

Pocket-item strictures were tightened in 1998 as part of the fallout from the corruption convictions of former City Manager Cesar Odio and Commissioner Miller Dawkins. In November 1998 Commissioner Arthur Teele proposed a requirement that the city manager review and recommend, in writing, all pocket items with budgetary impact. Although the measure took effect immediately, it had no teeth. Only after January 1, 2000, would violators have to pay fines up to $500.

Bring up the subject of pocket items with employees at Miami City Hall, and many recall the Bedminster deal. In 1996 former commissioner and convicted felon Humberto Hernandez proposed the city pay a company, which was represented by several commissioners' political cronies, millions of dollars to dump the city's trash on Virginia Key. Hernandez submitted the contract as a pocket item around midnight, when the audience was sparse. It passed unanimously. Two years later, soon after he was appointed to his job, Miami Mayor Joe Carollo alleged the city would lose about $130 million on the contract and tried to extricate it from the deal. The process drags on today.

Despite the contentious debate over Bedminster, the practice of improperly proposing pocket items continues. At least 34 times during 1999, sometimes more than once per meeting, commissioners employed the practice to reduce city fees, steer public dollars toward pet projects, and approve other questionable acts. (Overall the commission assented to 255 pocket items in 1999.) The beneficiaries of this rule-bending occasionally were elected officials' associates. "The guy who is flying in from out of town doesn't get a pocket item," Teele says. "It happens to the political insiders."

Among the most egregious: handing a sweetheart contract to the Miami Heat basketball team to park cars and dock boats near the new American Airlines Arena; steering $250,000 toward the oft-delayed renovation of Little Havana's Tower Theater; appropriating $52,000 for repairs to the financial morass of Bayfront Park; and temporarily converting parts of Bicentennial Park into a parking lot.

In some cases commissioners agreed to these outrages because it was in their interest

to do so; if they vote for a colleague's pocket item, that colleague will likely return the favor. City Attorney Alex Vilarello is paid by the commission, so it is in his favor to let the issues slide. And Warshaw contends enforcing the rule is not his responsibility.

So far this year commissioners have refrained from breaking the regulation. Attorney and community activist Dan Paul says pocket items may be illegal. He should know: In 1957 he helped write the Dade County charter, which included pocket-item standards similar to Miami's. "The Sunshine Law requires the agenda be done in advance and that everything to be discussed in the meeting be placed on the agenda," Paul says. "No question. [Pocket items] are probably a violation of the law."

If you believe city documents, Commissioner Teele recently ignored the very pocket-item rule he advocated. This past October 26 Teele proposed, and his colleagues approved, an unadvertised resolution allowing the Miami Heat to use public land to park cars and dock boats near the American Airlines Arena. The decision provided the team with the chance to make a tidy profit from taxpayer-owned land.

The 57,000 square-foot tract in question, on Biscayne Boulevard between Bicentennial Park and NE Eighth Street, these days is surrounded by a sagging chainlink fence. Like any other abandoned lot, it is filled with pebbles, cracking asphalt, and weeds.

Last fall, following heavy lobbying by the Heat, Teele proposed the following: Lease the property to the basketball team for three years at $2500 per month, and permit floating docks in an adjacent boat slip. The Heat would spend $600,000 on improvements ranging from paving and landscaping to repairing the sea wall. The team also would give the city eight percent of the dockage.

Because Teele presented the deal (which was negotiated by Vilarello) as a pocket item, there was no advance notice in newspapers. The only member of the public who spoke was Heat president Jay Cross. The agreement passed unanimously.

A quick analysis of the numbers seems to indicate the Heat received rights to the 119 parking spaces and 33 boat slips for far less than they were worth. If the team charges the $25 parking fee that is demanded by other area lots when events are scheduled, it could make $2400 per night. Since opening the arena has staged about thirteen games and other affairs per month. Assuming the lot can be filled with cars, the Heat can turn a $345,000 annual profit. Using the same assumptions, the dockage proceeds could equal about $435,000 per year.

Critics like Dan Paul say this pocket item presents two problems besides the lack of public notification: (1) Officials did not put the contract out to bid, therefore they did not obtain the best deal for taxpayers; and (2) Officials improperly sidestepped a law called the Carollo Amendment, which requires a vote by the citizenry on use of bayfront land. They did so by adding a condition that allows the city to reclaim the land with 30 days notice.

Teele acknowledges voters were not informed. It should not have been recorded as a pocket item, he adds, arguing the paperwork was distributed to his peers, Warshaw, and City Clerk Walter Foeman in time to be included on the agenda. He categorized the lack of publication as "an administrative glitch."

Foeman disputes Teele's account. The commissioner submitted the plan too late to be printed on that meeting's agenda. "It was in fact a pocket item," he says.

At a recent commission meeting, after New Times inquired about the deal, Teele asked his colleagues to schedule more public discussion for June 5.

From the outside Little Havana's Tower Theater appears as it did in its heyday. The two-story building on SW Eighth Street and Fifteenth Avenue opened in 1926. When Cuban exiles arrived in the 1960s, owners began showing Spanish-language films and subtitled English movies there. The cinema closed in 1984 after much of its clientele moved to the suburbs.

In 1993 a nostalgic Miami commission approved a $1.5 million restoration of the movie house that they hoped would reverse the deterioration of Little Havana's main street. After several years of planning, the groundbreaking finally took place in June 1997. At the event Commissioner Tomas Regalado spoke of seeing his first film there. Administrators announced plans to reopen it by summer 1998. It would include a 1000-seat theater with two screens and a museum showcasing the neighborhood's immigrant history.

In mid-April the curved white Art Deco marquee and posters announcing the Miami Hispanic Film Festival suggested the place was open for business. But a peek through the glass doors revealed white walls smelling of fresh paint and loose wires dangling from the ceiling. Only construction workers were allowed to enter. The grand opening of the renamed Tower Art Center, postponed numerous times during the past three years, was scheduled to take place April 24. But after the dramatic events revolving around Elian Gonzalez, it was again delayed until April 28.

Back in July 1998 the commission voted to transfer a $400,000 state grant -- earmarked for sound equipment and a concession stand -- to pay for building renovation. On December 17, 1999, the crowd was thin at Dinner Key when Regalado came up with a pocket item that would remove $250,000 from city coffers to buy speakers and an amplification system.

"The Tower Theater has had a lot of problems, as you all know," the commissioner explained. "I couldn't get [this issue] on the agenda, and public works has already identified the source of the funding. If we were to place it on the regular agenda for next month, the opening would not be able to be done in March, but maybe in April or May."

Freshman Commissioner Johnny Winton asked whether the administration endorsed the funding. Regalado answered that City Manager Donald Warshaw had recommended the expenditure December 13. The resolution passed unanimously. Regalado said Warshaw asked him to present the expenditure to the commission. "I've been pushing the administration to complete the Tower Theater for months," the commissioner commented. "There was no corruption here."

Despite the fact that the proposal met the letter of the law, it makes critics cringe. "It's a complete end run around the Sunshine Law," attorney Dan Paul complains. "There was no opportunity to analyze this and there was no opportunity to speak for or against this." And it illustrates another problem: Elected officials rarely challenge colleagues' pocket items for fear of losing support on their pet projects, he says. "The commissioners scratch each others' backs. You stop my item, I'll stop yours. It's an unwritten rule," Paul declares.

Before Winton upset J.L. Plummer last November, the 29-year commissioner was considered the king of the pocket. The former commission chairman introduced hundreds during his tenure. Most were innocuous resolutions honoring citizens or directing the city manager to investigate a problem. But every now and then Plummer would use the tactic to steer some money to his dominion, Bayfront Park, which he oversaw as chairman of the Bayfront Park Trust. One of these pocket items brought the trust's finances into the federal government's cross hairs.

The park, located just south of Bayside, was the site of Super Jam, a four-day party in January 1999 to celebrate Super Bowl XXXIII. To prepare the grounds, park director Ira Katz spent $52,000 on electrical improvements for illuminating a large tent, powering minikitchens, and energizing live bands' sound systems.

The soiree that preceded the Denver Broncos' drubbing of the Atlanta Falcons was a bust. In addition to the electrical work, the park ran up a deficit of $492,000. Not to worry. Toward the end of the February 9, 1999, meeting, Plummer proposed the city pay for the upgrades. "I have two [pocket items]," the commissioner explained. "The first one is the monies for ... paying these people that did the work at Bayfront Park."

Teele balked at approving the measure. "J.L., you see the problem is [this would make it seem] we don't have money for people but we've got money for a park," he groused. "It's a good, beautiful park. Every city in America should have a park like that, but that's not right."

Plummer responded the companies were awaiting payment for the electrical work. Teele relented. "Of course I'll do it, J.L. Just move the thing. It's wrong, though," Teele complained, as the commission unanimously approved the expenditure. (Plummer did not respond to several telephone messages seeking comment.)

On May 4, 1999, commissioners agreed to pay the additional $492,000. Following a yearly routine meant to justify the budget with actual expenditures, Warshaw recommended the city pay the expense. Although not a pocket item, the payment was buried in a stack of others so few people noticed it. Warshaw says Plummer suggested the strategy and he approved it.

The following day the large amount caught the attention of members of the state's oversight board, which was appointed after the Odio/Dawkins scandal to keep an eye on city affairs. The board's scrutiny led to an audit of the parks department's books. The ensuing report, issued this past February, found Katz had written an inordinate amount of checks to cash, reimbursed expenses without supporting documents, and handed out no-bid contracts.

Later that month the Bayfront Park Trust, headed by Commissioner Joe Sanchez, fired accountant Vikas Surana and suspended Katz with pay. City and federal investigators continue to review volumes of paperwork before deciding whether to file criminal charges.

Plummer's pocket item, which began the process, clearly was improper. He did not receive written approval from Warshaw to present it, according to the clerk's office. Carollo, who was mayor at the time but didn't approve the expenditure, sees the vote as an example of bad government. "Too many times pocket items at the end of a meeting have been put forward with a detrimental effect to the city," he notes.

"I have two pocket items pertaining to Bayfront Park," Sanchez declared on December 17, 1999. He didn't have a written recommendation from the manager. Nor did he seek an exception from his colleagues, who can allow more than one item if four of five commissioners assent.

"They are of an emergency nature," he continued. The crisis related to a scarcity of parking at the new American Airlines Arena. Gloria Estefan fans would not have enough space to leave their vehicles when the Cuban diva christened the venue on New Year's Eve.

Sanchez proposed allowing the city's Off-Street Parking Authority, a quasi-independent body, to take control of Bicentennial Park for most of January. He also pledged to protect the grounds: "No cars will be parked on the grass; they will be parked on the racetrack."

Commissioners expressed some misgivings. "If it's an ongoing thing, I really do think we have to have public hearings," said Winton. "We are going to get whacked for doing it for one event, never mind ongoing."

In the end commissioners unanimously approved the measure.

Sanchez acknowledges he erred in not obtaining the city manager's endorsement but explains he was trying to shore up the Bayfront Park Trust's depleted accounts. "You are right. We should have had public input on that," the chairman answers. "We already had parking for the construction workers in the park. What we were trying to do was generate income to pay for the maintenance of the park."

Then the commissioner adds: "I can assure the public I have not pulled a pocket item with a financial impact on the city.... I'm all for getting the people involved in the process."

When New Times points out that parking revenues affected the bottom line, Sanchez clarifies: "It was not a negative impact."

After approving the temporary parking, the commission decided to revisit the issue on January 13, 2000. In the interim the Urban Environment League organized rallies to save the park. The group opposed using the public space for parking as well as the Florida Marlins' plans for a stadium there. After some park advocates expressed their opposition, commissioners killed the parking proposal.

"If there is some sort of serious financial consideration, [the pocket items] should go through a public process," says Urban Environment League president Greg Bush. "I can see the necessity of bringing things up in a rapid fashion. But I can also see where it can be abused."

During the past month, New Times reviewed dozens of pocket items considered by the commission during 1999. Most acknowledged charitable works by citizens or delegated a specific task to the city manager. Those issues had no financial impact on the city.

But commissioners also employed the pocket-item maneuver to reduce by 40 percent the rent on the James L. Knight Center for a concert by the rock group Mana last September; to waive permitting fees for the Miami-Little Haiti Roots and Culture Festival at Lemon City Park last August; and to donate police protection to the Shriners' parade last July.

Another example: When Inter-Forever Sports, Inc., proposed staging a soccer game between Honduras and Haiti at the Orange Bowl last May, company representatives approached Regalado. Not a bad choice considering the commissioner introduced 25 pocket items last year. On May 11, 1999, without public notice or Warshaw's approval, Regalado proposed capping the stadium's rent at $7500, half the usual cost. (Inter-Forever Sports eventually paid $7500.)

City taxpayers, already burdened with the highest taxes in the county, paid for Regalado's charity. As in dozens of other cases, they didn't have a chance to debate it. The solution seems simple: Enforce the rules that are in place. But as long as politicians run the show, and there is money to be made, a long-time observer of local politics does not see the practice ending. "That's the way they do their dirty deals," declares Dan Paul.

So far this year commissioners have followed the rules. Few pocket items have been presented. Those that affected the budget were cleared by the city manager. Don't give up yet, though. There are eight months left in 2000.

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